Decided on March 12,1963



B.J.DIVAN - (1.) In this particular case a question arises about the scope and applicability of the presumption under sec. 4(J) of the Prevention of Corruption Act 1947 and the further question as to when the presumption under that section can be said to have been rebutted has to be considered. That section provides as follows :- - 4 (1) Where in any trial of an offence punishable under sec. 18 or sec. 165 or 165A of the Indian Penal Code it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person any gratification ( other than legal remuneration ) or any valuable thing from any person. it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or obtain that gratification or that valuable thing. as the case may he as a motive or reward such as is mentioned in the said sec. 161 or as the case may be without consideration or for a consideration which he knows to be inadequate.
(2.) This presumption under sec. 4(1) of the Act has come up for consideration in three recent decisions of the Supreme Court. The first of these cases is the case of StaGe of Madras v. Vaidyanath Iyer A. I. R. 1958 S.C. 61 and there it was laid down as follows :- - The presumption under sec 4 Prevention of Corruption Act is a presumption of law and therefore it is obligatory on the court to raise this presumption in every case brought under sec. 4 of the Prevention of Corruption Act because unlike the case of presumption of fact presumptions of law constitute a branch of jurisprudence. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The legislature has chosen to use the words shall presume and not may presume the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act no doubt for the purpose of that Act but sec. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e.g. Presumptions and therefore should have the same meaning.
(3.) In the subsequent case of C. I. Emden v. Sate of U. P. A. I. R. 1960 S. C. 5/8 the exact scope of the presumption under sec. 4(1) of the Prevention of Corruption Act and as to when that presumption can be said to have been rebutted were both considered by the Supreme Court. At page 551 it was held by the Supreme Court as follows :- - Paragraph 3 of sec. 161 of the Code provides that the word gratification is not restricted to pecuniary gratification or to gratifications estimable in money. Therefore gratification mentioned in sec 4 cannot be confined only to payment of money. What the prosecution has to prove before asking the court to raise a presumption against an accused person is that the accused person has received a gratification other than legal remuneration; if it is shown as in the present case it has been shown that the accused received the stated amount and that the said amount was not legal remuneration than the condition prescribed by the section is satisfied. In the context of the remuneration legally payable to and receivable by a public servant there is no difficulty in holding that where money is shown to have been paid to and accepted by such public servant and that the said money does not constitute his legal remuneration. the presumption has to be raise as required by the section. If the word gratification is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption. Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by sec. 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the Statutory presumption under sec 4(1). In the context we see no justification for not giving the word gratification its literal dictionary meaning. ;

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